The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-03-23
THE LEGAL POSITION,

THE LEGAL POSITION.
The Journal holds that Green Smith was
not de facto President of the Senate after
the Supreme Court had decided that it had no
power to determine the legality Of the tenure
of that Office. But while the restraining or
der of Judge Ayres was in force, prior to that
decision, he was de facto President The SUI
preme Courts decision made the difference.
It rubbed Smith out, and with him the organ
ization of the Senate that supported him.
Thus it left no coordinate branch of the Leg
islature, and the unorganized crowd in the
Senate chamber was no more a part OF the
Legislature than crowd around Sim Coy's
counter. We have tried to state the Jour
nails position correctly.-The News.
What the Journal holds is this Green
Smith was elected President pro tenn. of the
Senate, Gin the absence of the Lieutenant
governor" on the day the Senate was organ
lied. There never was any question as to his
right to preside after that election so long as
the Acknowledgements was absent" or
"unable to act" The Lieutenant governor
was sworn into office on the 10th day of JAN
uary, but before he had an opportunity to
attempt the assertion of his right to preside
over the Senate he was served with restrain
ing order from the Marion county Circuit
Court commanding him to refrain from
attempting to do so. During the continuance
of this ''absence" or Inability to act" Green
Smiths presidency for the occasion continued
without question by anyone. On the 23d of
February Acknowledgements Robertson was
relieved from the inability under which he
had been placed by Judge Ayres. On the
Oath of February he appeared in the Senate
chamber, and attempted to assume his con-
stitutional duty as President Of that
body. AS detailed elsewhere, he was
prevented by brute force. What the
journal holds is, that President
Of the Senate ''for the occasion" can only
have title to such presidency in the absence
or inability to act of the lieutenant governor,
and that when the Lieutenant-governor was
present and ready to act the title Of the Pres
ident ''for the occasion" terminated ex neces-
state Such title cannot be continued by
force or by mere assumption, either on the
part of the Senator so assuming to act or by
the vote or acquiescence of thirtyone other
Senators. If such thing can be then there
| must be an end to constitutional government,
and we have government by force.
''They shall take who have the power
And they shall keep who cam
That's not popular government; it is not
government of the people, by the people, and
| for the people; it is not our form of govern
ment.
| The twaddle about the right Of the Senate
| to determine who should be it's presiding Of
ficer is both misleading and pernicious,
whether it be INDUCED in by a Supreme
Court judge, or by an editor, or by Green
Smith revolutionist. The Senate has no such
power. 1t is expressly forbidden to exercise
such power by the Constitution, except in a
! given case and 'for the occasion" We
know of no reason why supreme Judge, or
a State Senator or a majority of State Sena-
tors, should not be held to obedience to the
Constitution. The Supreme Court, by a
majority Of its judges, said that the posi-
ton of Green Smith was contest of the
election of a Lieutenant governor, and such
contest could only be determined by the
General Assembly in the manner provided
by law What two supreme judges said,
or what some other judge may have said, could
have no possible bearing upon the case. The
prima facie right of the Lieutenant governor
remained unassailed, except by the brute
force of Green Smith and of majority of the
State Senator'S From the moment that the
Lieutenant-governor appeared to take his
place as President of the Senate, the title oil
Green Smith ceased, just as much as the title
of Isaac P. Gray to be Governor will cease on
the event specified by the Constitution, or as
the title of Benjamin Harrison to be United
States Senator ceased on the 4th day of March
instant. What would be thought had Gen
Harrison insisted that he must continue as
Senator de facto, because he was in Office ano
because he questioned the validity of the
election of his successor What would be
thought had majority of the Senate hacked
him up in such claimf Who would have
recognized him as de facto Senators Would